Aviation Diplomacy - Part of the Problem?

As I teach my aviation law students, where fault is established as a matter of fact and evidence, the law does the best it can to compensate the families of those who are lost in aviation accidents, but it is not a science and it is hard for survivors to believe that the concept of justice has ever "been done."

Quite simply, the emotional trauma -- present on a personal, social (e.g., community) and even global level -- is lasting.  All the more reason the recent tragedy of Malaysia Flight 370 is so disturbing and why the lack of a coherent explanation for the disaster some 8 days and counting aggravates a horrible situation.

Journalists and investigators and regular airline passengers around the world are stunned this week with news of perhaps the strangest tragedy in aviation history: A Malaysia Airlines Boeing 777 disappeared from civilian RADAR (apparently) during ordinary cruising flight.

At this early stage of the investigation (but a painfully late stage for the families and friends who hold out hope) there is no shortage of theories -- from the logical to the imaginative.  That said, Malaysian authorities have (more than a week after the incident) stated that the "Evidence is consistent with someone acting deliberately from inside the plane," officially confirming the plane's disappearance was not caused by an accident.  ["Deliberate" is not a sinister term standing alone, yet the context here suggests otherwise.]

Among other interesting things about all this is that the person making the announcement is no less than the Prime Minister of Malaysia.  That is a noticeable feature -- and not necessarily an encouraging feature -- of this aviation incident involving a national "flag carrier."

In the United States, air carriers are private and work with the National Transportation Safety Board ("NTSB") which takes the lead in investigating and determining the "probable cause" of an aviation accident.  The NTSB's report is not admissible in a court of law for liability purposes; the policy reason for this is to encourage efforts to find out what happened and why - not to adjudicate who is to blame from a damages perspective, if anybody.

Compare that against the Malaysia investigation where the government itself seems guarded in its dissemination of information that is, for starters, time critical.

From a practical perspective, this is all explicable as the New York Times reported --

By international agreement, the country in charge of investigating a plane crash or other such event is the one where it occurred. If a plane comes down in international waters, jurisdiction goes to the country whose carrier was involved. In this mystery, the presumption is that the problem is Malaysia’s. But whoever is officially responsible, there is a guiding American principle.

We try very hard not to make it look like we are running the investigation, even if we more or less are,” said Bernard Loeb, a former head of aviation safety at the National Transportation Safety Board, which leads the American delegation of experts at any crash involving an American airline or an airplane built in the United States. When crashes occur here, foreign aircraft or engine manufacturers like Airbus or Rolls-Royce get the same “observer” status and often contribute technical expertise.

From a legal perspective, however, if (and when) lawsuits arise from Malaysia 370, the jurisdiction and laws (not least of which is the so-called Montreal Convention) involved will be as varied as the hundreds of souls from around the world aboard the airplane -- making a strong and transparent and organized investigation all the more important.

Fresh off the presses is the March 6, 2014 Huerta v. Pirker legal decision by the National Transportation Safety Board (“NTSB”) Office of Administrative Judges in the context of unmanned aerial systems (“UAS”) or “drones”–specifically commercial UASs.

Below is a description of the ruling, the ruling itself, and some observations about where things stand now.

The case stems from the operation of a powered glider in the vicinity of the University of Virginia. According to the FAA, the glider is an “aircraft” and was operated for compensation in that payment was received for video and photographs taken during the flight. The operator, Raphael “Trappy” Pirker, was fined 10,000 by the Federal Aviation Administration (“FAA”) in October 2011 under the regulation that prohibits the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another.

“Trappy” filed a motion to dismiss the FAA’s order and penalty on the basis that the FAA did not have any legal authority to regulate model aircraft flight operations. The FAA argued that it has the power to regulate all “aircraft” and that model aircraft fall within the scope of the term “aircraft.” Judge Patrick Geraghty disagreed.

In his order (see below), the NTSB judge said that the FAA has historically considered “aircraft” and “model aircraft” as two different things. For example, in its policies, the FAA has modified the term “aircraft” by prefixing the word “model” to distinguish one device or contrivance from another, wrote Judge Geraghty. In addition, an “aircraft” is a “device that is used or intended to be used for flight in the air.” The FAA requires operators of “aircraft” to obtain airworthiness and registration certification for their machines. It has never done so with respect to “model” aircraft. As a result, the NSTB rejected the FAA’s argument that is power to regulate “aircraft” included regulation of “model aircraft.” According to the NTSB, to believe otherwise would be to believe that “a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of the FAA.”

Stated another way, the FAA does not regulate “model aircraft” like Trappy’s in any mandatory way and has not formally enacted any rule that allows it to do so now. Says the NTSB:

[The FAA] has not issued an enforceable [Federal Aviation Regulation ("FAR")] regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of “aircraft” by relegating model aircraft operations to voluntary compliance with [FAA guidance on the subject]. [Therefore, Trappy's] model aircraft was not subject to FAR regulation and enforcement.The classification UAS simply does not appear in the Federal Aviation Regulations.

In addition, and equally significant, while the FAA has published various notices and policy statements respecting UAS, such policy statements are for internal FAA use and not binding upon the general public. For the FAA to create a valid law or rule for UAV operation, it must issue a Notice of Proposed Rulemaking (“NPRM”) and publish such notice for 30 days before any new rule becomes effective. It has not done that, the NTSB found. That is, at the time of Trappy’s model aircraft operation, “there was no enforceable FAA rule or FAR regulation application to model aircraft or for classifying model aircraft as an UAS.”

In all, the Pirker decision is important, but perhaps only because it is a “first” by offering some legal guidance for an industry starving for predictable regulations.

Does the decision really say anything more than what we know (or hope) is true in our democracy – that the government cannot act to punish people without proper rules? Maybe so. If there is a lesson in the Pirker decision, it may be that UAS operators can or should push the envelope and force aviation regulators to focus less on their power to punish in the name of safety and more on their role to stimulate aviation commerce.

For more commentary see droninglawyer.com.

Forget Drones. Helicopter Safety NTSB Priority

The National Transportation Safety Board ("NTSB") announced that one of its focus areas in the coming year will center on "an unacceptably high number of helicopter accidents."  Says the NTSB:

In the last ten years, 1,470 accidents occurred involving helicopters used as air ambulances, for search and rescue missions, and commercial helicopter operations such as tour flights. As a result of those crashes 477 people lost their lives and 274 were seriously injured. There is no simple solution for reducing helicopter accidents but safety improvements to address helicopter operations have the potential to mitigate risk to thousands of pilots and passengers each year.

A complete account can be accessed below and here:


What might be most interesting is how, if at all, this focus impacts the evolution of unmanned aerial vehicles (UAV's or "drones"). UAVs and helicopters have operational overlaps when it comes to performing so-called dirty, dull, and dangerous missions. It is an open question whether the use of UAVs in operations traditionally served by helicopters would mitigate against risks the NTSB has identified or might identify.

Fatal Airline Accident in San Francsico

Just last year, on February 11, 2012, the New York Times reported that "it will be four years on Tuesday since the last fatal crash in the United States, a record unmatched since propeller planes gave way to the jet age more than half a century ago. Globally, last year was the safest since 1945, with 23 deadly accidents and 475 fatalities, according to the Aviation Safety Network, an accident researcher. That was less than half the 1,147 deaths, in 42 crashes, in 2000."

This weekend was a jolting reminder of how safe airline travel has been in this country.  The  news cycle was dominated by headlines of an Asiana Airlines 777 airline crash landing in San Francisco.  (Incredible (but graphic) video here.)

San Francisco has been a safe airport historically and it is not clear that weather played any factor in this accident.  Nor is it clear what role pilot error played amid initial reports that the airliner was given go-around instructions.

That said, any speculation is unwarranted at this point as the National Transportation Safety Board will investigate the "probable cause " of the accident.  It may take years for such a report to issue.  For now, however strange it might seem, there is some solace to take away from the photo above.  It could have been much, much worse and the fact the airplane still looks like an airplane offers support for how jumbo jets are manufactured today.

Invariably, aviation accidents involve rights that are vindicated in courts and this tragedy highlights the international character of aviation law like few other areas of the law.  Aboard the airplane were citizens of South Korea, the United States and elsewhere.  An intricate set of treaties and laws, including the Warsaw Convention, Montreal Convention, and individual state rights will be at play should any wrongdoing be alleged and prove here.

Air Show Accident

Terrible news as Ohio officials report that two people were killed when a plane carrying a wing walker crashed and burst into flames at a Daytona-area air show.  It was not immediately known why the accident occurred.

(Please be aware the video here is graphic and disturbing.)

Air show accidents are not common, but, they are not rare either.  For that matter, air show accidents are unique for their legal complexity.  Not only is there a question of what went wrong in the cockpit (if anything), but there are questions about the welfare of the thousands of spectators, and whether or not public and private organizers of the air show took proper precautions to avoid the tragedy -- on the ground and in the air.

For now, determining the probable cause of this accident, not assigning blame, is crucial so that whatever occurred will not happen again.  To that end, the National Transportation Safety Board will now investigate "man, machine, and environment" to develop a report of this terrible tragedy.